HL Deb 07 June 2004 vol 662 cc13-30

3.10 p.m.

Lord Filkin

My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Filkin.)

On Question, Motion agreed to.

Clause 14 [Unification of appeal system]:

Lord Goodhart had given notice of his intention to move Amendment No. 42:

Page 13, line 29, after "thinks" insert "it is reasonably arguable"

The noble Lord said: My Lords, we are content with government Amendment No. 42A, therefore I shall not move Amendment No. 42.

[Amendment No. 42 not moved.]

Lord Filkin moved Amendment No. 42A:

Page 13, line 29, after "Tribunal" insert "may have"

The noble Lord said: My Lords, on behalf of my noble friend Lady Scotland, I beg to move Amendment No. 42A.

I trust that the amendment's measures are largely self-explanatory. We recognise the arguments put forward by noble Lords in Committee that subsection 2(a) of new Section 103A was not as clear as we intended. That is why we have tabled Amendment No. 42A, which has the advantage of being a formula from the civil procedure rules.

The Civil Procedure Rule Committee, when considering the rules relevant for the purposes of Section 101 of the Nationality Immigration and Asylum Act 2002, decided that it would be appropriate to add the words "may have". That addresses the point that when dealing with an application on the papers the judge might not be able to be certain whether an error of law had been made. We wish to stick closely to the statutory review test, which already has the benefit of judicial interpretation.

Lord Kingsland

My Lords, in our original amendment, tabled on the first day of Committee, our test for review was more demanding, although it was predicated upon changes at the Home Office interview stage and the single-tier tribunal stage, which have so far not been forthcoming. So we will not contest it.

However, the Government will have to recognise that their amendment will have implications for their legal aid proposals. You cannot have a test for review consisting of the Government's new definition on the one hand, and a legal aid regime that gives legal aid only ex post facto for wins or near-misses on the other. That legal aid regime is clearly no longer appropriate. The list for provision of legal aid should clearly match the new government review test; otherwise the legal aid system will block access to rights now to be granted by legislation.

Lord Goodhart

My Lords, we feel that the amendment deals with the problem that we outlined in Committee. We are satisfied with its drafting. The noble Lord, Lord Kingsland, has rightly raised the question of legal aid; we shall speak on that when we get to the appropriate group of amendments.

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 43:

Page 13, line 33, leave out "5" and insert "10 working"

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 44, 51, 52 and 59.

New Section 103A of the Nationality Immigration and Asylum Act 2002, added by this Bill, imposes a draconian timetable on applications for review of tribunal decisions. It allows a period of five days, beginning with the date on which the appellant is treated as receiving the notice of the tribunal's decision in accordance with the rules. Frankly, that is a ridiculously inadequate period.

First, the date of the actual receipt of notice may be later than the deemed date under the rules, particularly if the now notoriously unreliable postal service is used. It is perfectly proper to include a deemed date in a Bill, because it prevents problems of uncertainty about when notice was received. However, a deemed date is acceptable only if the time as a whole that is provided is reasonable and it can be accepted that the deemed date may be a day or two in advance of the actual date of receipt. In other circumstances such as those in the Bill a deemed date is not acceptable.

Secondly, the period allowed is not even five full days; in reality, it is more like four. As the Bill is drafted, the day on which the notice is deemed to have been received is the first day of the five-day period. Therefore, even if notice is deemed to have been received on a Monday and is indeed received on that day, that constitutes the first day of the five-day period, and the second, third, fourth and fifth days are Tuesday, Wednesday, Thursday and Friday. So the application received on Monday will have to be submitted before the court closes for business on Friday afternoon. That is inadequate time.

Let us look at what needs to happen. The appellant's lawyer, if he or she has one, cannot set out grounds of appeal before seeing what the tribunal has said and the grounds on which it has decided the case. The lawyer will therefore have to read the tribunal's decision, to consider further the legal issues involved in the decision and possibly consult the client—that may involve arranging a meeting at which an interpreter must be present. The lawyer will have to draft grounds of appeal, get the application in proper order and submit it to the appropriate court before it closes for business on the last available day. Lawyers are likely to be busy and have several cases running simultaneously, with the result that the one who handled the first stage may have other commitments, meaning that a new lawyer must be found to submit the application.

We recognise the power in subsection 4(b) of new Section 103D to extend the time, but that safety valve is not an adequate reason for allowing much too short a time for the basic period. If applications made out of time become frequent, it leads to unnecessary time-wasting and cost-wasting satellite arguments about whether there is adequate justification for the delay. Ten working days is quite a short period but would be just sufficient for these cases.

Amendments Nos. 51 and 52 follow on from the earlier Amendments Nos. 43 and 44. We recognise that there may be a need for power to vary the timetable by secondary legislation. But that power can be used not only to extend the time but to reduce it to a period shorter than that stated in the Bill. We believe that if it is used for that purpose, the order should require the affirmative resolution procedure. We feel that among the many defects of Clause 14, given that it is a considerable improvement on its predecessor, the extremely and unnecessarily short timescale that is provided for making the application is one of the worst. I beg to move.

Lord Clinton-Davis

My Lords, I support what the noble Lord, Lord Goodhart, has said. We are grateful that there has been some improvement in Clause 14. The Government ought to be congratulated as far as that is concerned. However, as the noble Lord, Lord Goodhart, said, the period of five working days is wholly inadequate. The purpose behind my support for these amendments is to improve rather than diminish the practicability and effectiveness of this clause. It is the view of the Law Society that the amendments that have been moved are likely to be more realistic in the circumstances. As the Law Society has contended, the crucial matter is that justice should be done and be seen to be done. Speed is significant, but it is not the whole argument. For that reason, I support the proposal of 10 working days.

The time limit is in many cases impracticable, and it will have the unfortunate consequence of persuading more applicants to apply to the court for an extension of the statutory time limit. The essential issue is that the case ought to be properly prepared and presented; that cannot be done in five working days. I speak from some experience as far as this provision is concerned, both direct and indirect. We are talking about people's right to present their case properly. There have been many incidences of this concern in practice.

The amendment is supported by the Law Society for the reasons that I have elaborated. As I understand it, the Law Society has explained its purpose to Ministers. What have Ministers said to the Law Society in response? The House is entitled to know. After all, the Law Society is concerned—as is the Bar Council—to make these provisions practicable and enforceable. I hope, notwithstanding the initial response, that my noble friend will have second thoughts about this important matter.

Lord Newton of Braintree

My Lords, I rise to speak only briefly, reminding the House, as I did when I spoke in the original debate on the ouster clause, that I am chairman of the Council on Tribunals, which I hope may be seen as a qualifying interest, rather than a disqualifying interest in this context.

Looking carefully in the direction of the Minister, I wish to express my support—and I think I can safely say the support of the Council on Tribunals—for some extension of this five-day rule. Like everyone else, we focused our principal attention on the original ouster clause, and share the gratitude of all that it has disappeared in its original form.

However, this was one of the various points of detail on which we had focused. I can only say that we believe—I certainly do—that five days is much too short a period to obtain proper advice about applying for a review and help in preparing it, and much too short a period for an appellant with no means of obtaining advice or assistance. In general, there is a risk that this would run contrary to what we would all agree, however difficult the problem, should be an open and proportionate system of review.

I do not think that I need to say more, but I hope that we shall receive a positive response from the Minister. Whether 10 days is the right figure is not a matter that I would want to die in a ditch on, but I am clear that five days is too little. I hope that the Government will be prepared to look at this again.

The Lord Bishop of Newcastle

My Lords, I support the amendment standing in the name of the noble Lord, Lord Goodhart. I am grateful for some of the changes that the Government have made in Clause 14. They have gone some way to satisfying some of the objections that some of us have had. In my view, they have not yet gone far enough. I am particularly bothered about the five-day limit. I do not believe that it is workable. A much-respected immigration solicitor in the city of Newcastle, where I live and work, says that she spends some 20 hours preparing a case with a client. She believes that her job will no longer be viable if these regulations are to come in. In an asylum system that anyway is operating with a culture of disbelief, how on earth will vulnerable people be able fully and effectively to put forward their evidence within those five working days of the notification of the decision?

Grounds of appeal prepared in great haste do not give the best material on which to make difficult decisions. The five-day limit is not a proposal for a fair system, let alone an effective one. Therefore, I strongly support this amendment in the name of the noble Lord, Lord Goodhart.

Lord Avebury

My Lords, I am glad that the right reverend Prelate has raised the question of the time that is required to obtain the legal advice that is necessary, because this is a matter that has been raised with all your Lordships by the Refugee Children's Consortium. It says that this is a universal problem. It is not just the particular adviser who has informed the right reverend Prelate of this problem; all advisers are in the same boat. They already must spend a great deal of time accessing legal advice on behalf of their clients, and these regulations will make life almost impossible.

In the representation that the consortium has made to your Lordships, it says that its staff already spend hours on the telephone seeking a legal representative, or to make an appointment with a legal representative. The first lawyer that they approach many not be willing to take the case on, and there may be several iterations of the calls. The original lawyer who dealt with the case at an earlier stage may not be prepared to act in this instance.

It is almost universally agreed that the time limit of five days is impossible. It was referred to particularly in the JCHR sixth report of session 2003–04, which says that, the UNHCR has expressed the same concern about the five day limit and the likelihood that it may result in … contravention of the fundamental principle of non-refoulement in Article 33 of the 1951 Convention Relating to the Status of Refugees". They say that it falls short of international standards of fairness, while seriously compromising the ability of asylum applicants to access their rights of appeal. Faced with this barrage of opinion from all quarters, I cannot imagine that the Home Office will stick with its original decision. It must bow to the weight of professional and legal opinion and make the concession that my noble friend has asked for.

3.30 p.m.

The Countess of Mar

My Lords, may I remind noble Lords of my interest in this subject? I am a lay member—currently an endangered species—of the Immigration Appeal Tribunal. I support the noble Lord, Lord Goodhart, and all the other noble Lords who have spoken in favour of this amendment. Already the number of lawyers who are registered as being allowed to represent asylum seekers is limited and, from my own knowledge, they are extremely hard-working and hard-worked individuals. If they are not given time to prepare a case properly it is going to defeat the objective of this Bill, which is to speed up decision-making, so I offer my support.

Lord Plant of Highfield

My Lords, I intervene as a member of the Joint Human Rights Committee, whose report the noble Lord, Lord Avebury, has just mentioned. The Committee deliberated long and hard about the new clause and all its various ramifications, and we looked at a great deal of evidence. I remind noble Lords, with their indulgence, of precisely what the Committee said on page 21 of its recent report; it is pretty categorical. It stated:

We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective. The number of tasks to be performed between receipt of a decision and lodging an application for a review makes it simply impracticable to require applications to be lodged within five days. An application for reconsideration will require the applicant's legal representative to receive a copy of the Tribunal's decision, to read and consider it, to marshal any necessary evidence (which may require a meeting with the applicant at which an interpreter might well be required), to draft the legal grounds of challenge, and to lodge the application at the High Court. We consider that, more often than not, completing all these steps within a five day time limit will be a physical impossibility for most asylum seekers". We come to the conclusion that this provision may in effect impede the idea of a right of access to the higher courts.

Lord Ackner

My Lords, it is obviously desirable that any time limit should be fair, but it is even more important that it is practical. If it fails in that, there is a real risk it will defeat itself, and there will come before the necessary authorities something that may be looked upon as half-baked. To bake it properly will waste time, which will be due entirely to the defect that has been pointed out. The offer to increase the five days by another five is an extremely reasonable and sensible approach, which involves the Government in no cost of any significance.

Lord Kingsland

My Lords, so many of your Lordships have spoken to the same effect on this amendment that I have little to add. We have added our name to the amendment moved by the noble Lord, Lord Goodhart, and so your Lordships would naturally expect me to support it, which I happily do.

We on these Benches have always been opposed to the five-day period for the reasons that the noble Lord, Lord Goodhart, and others of your Lordships have so eloquently expressed. In an amendment tabled in Committee, we suggested a seven-day limit. However, that suggestion was based on a number of assumptions about the rest of the Bill that no longer apply, of which I shall mention just two. The current appeals rules—that is, the rules of 2003—allow for the interests of justice to be taken into account when considering an extension of time. That provision is in paragraph (2) of Rule 16. We should contrast that with the test for extension of time found in Clause 14(6), which sets out the terms of subsection (4)(b) of new Clause 103A. The test is expressed thus: the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3)"— in this case, it is five days— where it thinks that the application could not reasonably practicably have been made within that period". I am sure that your Lordships will agree that that is a much more severe test for the applicant than the test under the existing rules.

Our second reason for supporting the noble Lord, Lord Goodhart, is that our suggestion—seven days—also assumed that oral hearings would be permitted in the review, where they were considered by the High Court judge to be in the interests of justice. In the absence of the ability to make such oral submissions, the quality of written submissions and their degree of comprehensiveness must be very high. We do not see how that can be achieved within the short period of five days.

For those reasons and for others that have been amply expressed by your Lordships, we support the amendment moved by the noble Lord, Lord Goodhart.

Lord Filkin

My Lords, in responding to the many noble Lords who have spoken to the amendments, I thank those who paid tribute to the fact that the Government have listened to representations made in this House and elsewhere. That is appreciated. As a consequence, we have crafted a system that still enables us to achieve the essential thrust of the policy, while listening to the concerns that have been raised.

Amendments Nos. 43, 44 and 59 would extend the time limit for making a review application and for opting in under the transitional provisions from five working days to 10 working days. As the House knows, we wish to make the review process as swift but as fair as possible. We are confident that, in practice, five working days allows an appellant sufficient time to consult a legal representative and lodge the application papers for a review. It should also allow sufficient time for an applicant to opt for the review application to be looked at by the High Court under the transitional provisions in Schedule 2.

I shall explain why we have come to that view. It is important to remember that we are not talking about the appeal against the initial decision by the Secretary of State or entry clearance officer. The review is a process that we will put in place to allow a tribunal decision to be reconsidered, if there may have been an error of law by the tribunal that affected the tribunal appeal determination. In those circumstances, the shorter time limit of five working days best achieves the balance between speed and fairness.

The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal. There will have been a clear statement of reasons for the appeal that will focus the appeal on the key points at the hearing. The process is not a rehearing of the case requiring new grounds but a process to allow errors of law by the tribunal to be corrected, if it affected the original appeal decision. That should not be over-onerous on the legal representative, as, first, the legal representative should already be familiar with the case through the earlier work on the appeal and, possibly, the initial claim to IND. Secondly, the kind of issues that we are talking about with regard to an "error of law" should be familiar to the lawyers from their experience of judicial review and statutory review. If there is a genuine exceptional reason why the application could not be made in five days, it is down to the judge to decide whether to allow a late application.

The noble Lord, Lord Kingsland, explained as elegantly as one would expect why he has moved from supporting a seven-day timetable to supporting one of 10 working days. When my noble and learned friend the Lord Chancellor announced at Second Reading that we would introduce measures to provide for oversight by the higher courts, he stressed that we would balance them with the aims of speed and reduction of abuse. We must bear those objectives in mind at the same time. It is important to ensure that there is a fast, end-to-end process. It is not in the interests of genuine appellants to drag out the appeal process. Shorter time limits would help to dissuade people from abusing the process or wrongly believing that they can.

Lord Kingsland

My Lords, I am grateful for the Minister giving way so courteously. I understand his point about expedition, which was made by the noble and learned Lord the Lord Chancellor at an earlier stage. But does it not fit ill with the refusal of the Government to include in the Bill either a limitation period for the period between the asylum application and the application decision by the Home Office or the additional refusal of the Minister or the Home Office to accept any time limitation between the end of the statutory review process and the moment of deportation? What relevance has five days within the appeal process if the Government have dug their heels in on those other periods, which often amount to years?

Lord Filkin

My Lords, I shall now relay the remarkable reduction in the overall speed of decision making that has taken place on asylum and immigration matters since 1997. I am sure that the noble Lord, Lord Kingsland, is well aware of the significant overall reduction. We are debating the specific time limit of the appeal in order to see whether we have allowed a process that gives an appellant an adequate time in which to put forward his or her case. With the leave of the noble Lord, I shall continue my explanation about why we believe that we have got it pitched right.

As I have said, we accept that there will be exceptional circumstances when, for reasons outside the control of the applicant and his or her representative, it will not be possible to lodge an application within the five-day time limit. The Bill recognises that and makes provision for applications to be accepted out of time in those circumstances. The discretion in doing so will rest not with the Government but with the High Court judge who is considering the issue.

Amendments Nos. 51 and 52 would make the order-making power to vary the time limits subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee scrutinised the order-making and regulation-making powers in Clause 14 and published its recommendations in its 15th report of this Session. The committee recommended that regulation-making powers under Section 103D of the 2002 Act, which concern new legal aid arrangements, should be subject to the affirmative resolution procedure. I have brought forward an amendment to give effect to that recommendation.

However, the committee did not recommend that the order-making power to vary time limits should be subject to the affirmative resolution procedure. If the order-making power is used, both Houses would have the opportunity to give detailed consideration to the order. If they felt it necessary, they could of course pray against it.

Perhaps I may turn to some of the specific points—

Lord Clinton-Davis

My Lords, I am much obliged to my noble friend the Minister for giving way. I am sure that he has had an adequate opportunity to advance all those arguments to the Law Society, the Bar Council and others, but would he care to mention who supports the Government where this is concerned? After all, the House is entitled to know that. When my noble friend advanced those arguments to the powers that be, what was their response?

Lord Filkin

My Lords, I was not privileged to be privy to all of those discussions with the relevant professional bodies. In response to the question about who supports the attempt of the Government to ensure that we uphold our traditions in this society of giving fair and proper consideration to people who apply to us for refuge and asylum, the public are clear that they want government and society generally to ensure that the abuse in the system is stamped out. There is strong support for that position, not just—how shall I put it?—among the more extreme elements of the popular press, but also among those who hold dear the tradition of this society, and its responsibilities, to consider applicants for asylum. That is my answer to my noble friend.

Lord Clinton-Davis

My Lords, I am much obliged. It is astonishing to say that to extend the time limit from five to 10 working days is extreme. I do not believe that. What I said at the beginning is wholly true. I want to make these considerations workable and practical. Nothing that my noble friend has said draws me to an opposite conclusion.

Lord Filkin

My Lords, I have no doubt that that is the thrust of my noble friend's intention on this measure, as it has been on many asylum and immigration matters. I am saddened that I have not managed to persuade him at this point.

Perhaps I may turn to a number of points that were raised in discussion. The noble Lord, Lord Goodhart, raised the important issue of deemed service. The five days starts two days after the issue of the notice of decision from the AIT. Therefore, for very good reasons, it is effective not from the date of being sent out but from two days after that date. The last day of deemed service would not overlap with the first day of the five-day application period. We will ensure that that is done and set out in the rules.

The noble Lord, Lord Avebury, also referred to the UNHCR disapproving of the five-day limit. The UNHCR comment relating to a five-day limit refers to filing an asylum claim. We are not referring to that in these measures, but to a subsequent time limit for seeking a review and reconsideration.

We do not wish to ignore the representations of the House, but we have given the issue very careful consideration. In the vast majority of cases, an asylum applicant will have had a lawyer at the original asylum and immigration tribunal hearing. In many cases, during the hearing, the points of law on which it seems likely that the tribunal's determination will turn and hinge will be identified, so the lawyer and the applicant will not come cold to the thrust of the likely decision by the tribunal. Therefore, in most cases, a lawyer and his client would have been in a position to have discussed whether, if the hearing did go against them, they would wish to lodge an appeal. Often, the lawyer would be well prepared about what should be the thrust of the case that he or she would put before the High Court when seeking an ex parte application.

Therefore, for those reasons, we think that five days is workable. However, that should be cautioned, of course, by the fact that there is a discretion for the High Court judge to waive that when he or she thinks that the interests of justice require it.

Lord Avebury

My Lords, I am most grateful to the noble Lord. My quotation from the UNHCR was not direct, but it came from paragraph 1.81 of the 6th report of the JCHR. That was in the context of the shortness of the time limit for applying to the High Court for a reconsideration. It was not in terms of the first application at all. If the noble Lord refers to the JCHR report, he will find that my quotation was relevant to this discussion.

Lord Filkin

My Lords, I thank the noble Lord, Lord Avebury, for his correction.

Lord Goodhart

My Lords, the Government have said that their objective is to have a procedure that is swift but fair. We agree with that objective. Unfortunately, the Government's proposals, while plainly swift in this respect, are blatantly unfair. The Government say that they are confident that an appellant will have sufficient time because—so they say—the grounds for appeal will already have been covered in the argument at the first hearing before the asylum and immigration tribunal.

The idea that the judgment of the tribunal is so predicable that, in effect, it is possible to draft a notice of appeal in advance is utterly unrealistic, as, I believe, anyone who has practised in the courts will agree. Many speakers in this debate have said that a five-day period is utterly impracticable. The five days' limit will be only a very minor factor in extending the time before the removal ultimately of an unsuccessful asylum seeker. The five days' limit will be a major factor in creating unfairness in the system.

I am most grateful for all the support that this amendment has received from all parts of your Lordships' House. The amendment echoes the views of the highly respected Joint Committee on Human Rights. In those circumstances, it is proper for me to seek the opinion of the House.

3.50 p.m.

On Question, Whether the said amendment (No. 43) shall be agreed to?

Their Lordships divided: Contents, 143; Not-Contents, 94.

Division No. 1
Ackner, L. Laming, L.
Addington, L. Lamont of Lerwick, L.
Allenby of Megiddo, V. Listowel, E.
Alton of Liverpool, L. Lloyd of Berwick, L.
Ampthill, L. Luke, L.
Anelay of St Johns, B. Lyell, L.
Astor of Hever, L. McColl of Dulwich, L.
Attlee, E. MacGregor of Pulham Market, L.
Avebury, L.
Baker of Dorking, L. Mackay of Clashfern, L.
Beaumont of Whitley, L. Mackie of Benshie, L.
Biffen, L. McNally. L.
Blaker, L. Maddock, B.
Bledisloe, V. Mar, C.
Bridgeman, V. Mar and Kellie, E.
Brittan of Spennithorne, L. Marlesford, L.
Brooke of Sutton Mandeville, L. Methuen, L.
Brougham and Vaux, L. Miller of Hendon, B.
Caithness, E. Monro of Langholm, L.
Campbell of Alloway, L. Montrose, D.
Carlisle of Bucklow, L. Murton of Lindisfarne, L.
Carnegy of Lour, B. Newcastle, Bp.
Chadlington, L. Newton of Braintree, L.
Chester, Bp. Noakes, B.
Colwyn, L. Northesk, E.
Cope of Berkeley, L. Northover, B.
Craig of Radley, L. Oppenheim-Barnes, B.
Crickhowell, L. Oxford, Bp.
Cumberlege, B. Park of Monmouth, B.
Darcy de Knayth, B. Peel, E.
Deedes, L. Perry of Southwark, B.
Dholakia, L. Plant of Highfield, L.
Dixon-Smith, L. Platt of Writtle, B.
Donaldson of Lymington, L. Plumb, L.
Eccles of Moulton, B. Plummer of St. Marylebone, L.
Elles, B. Prior, L.
Elliott of Morpeth, L. Rawlings, B.
Ezra, L. Rawlinson of Ewell, L.
Falkland, V. Razzall, L.
Feldman, L. Reay, L.
Freeman, L. Redesdale, L.
Geddes, L. Renton, L.
Glentoran, L. Roberts of Conwy, L.
Goodhart, L. Rodgers of Quarry Bank, L.
Goschen, V. Roll of Ipsden, L.
Hamwee, B. Roper, L. [Teller]
Hanham, B. Saltoun of Abernethy, Ly.
Hannay of Chiswick, L. Seccombe, B. [Teller]
Harris of Peckham, L. Selsdon, L.
Harris of Richmond, B. Sharman, L.
Hayhoe, L. Sharp of Guildford, B.
Henley, L. Sharples, B.
Hooper, B. Shutt of Greetland, L.
Howe, E. Skelmersdale, L.
Howe of Aberavon, L. Skidelsky, L.
Howe of Idlicote, B. Slim, V.
Howell of Guildford, L. Smith of Clifton, L.
Hunt of Wirral, L. Soulsby of Swaffham Prior, L.
Hurd of Westwell, L. Stern, B.
Jenkin of Roding, L. Strathclyde, L.
Jopling, L. Swinfen, L.
Kimball, L. Tanlaw, L.
Kingsland, L. Taverne, L.
Kirkham, L. Tebbit, L.
Tenby, V. Wakeham, L.
Thomas of Walliswood, B. Walmsley, B.
Thomson of Monifieth, L. Walton of Detchant, L.
Tope, L. Warnock, B.
Trenchard, V. Watson of Richmond, L.
Trumpington, B. Weatherill, L.
Tugendhat, L. Williams of Crosby, B.
Waddington, L. Windlesham, L.
Ahmed, L. Hollis of Heigham, B.
Alli, L. Howells of St. Davids, B.
Amos, B. (Lord President of the Council) Howie of Troon, L.
Hughes of Woodside, L.
Andrews, B. Hunt of Kings Heath, L.
Archer of Sandwell, L. Irvine of Lairg, L.
Ashton of Upholland, B. Jeger, B.
Bassam of Brighton, L. Jones, L.
Berkeley, L. Jordan, L.
Bernstein of Craigweil, L. Lea of Crondall, L.
Blackstone, B. Lipsey, L.
Borrie, L. Lofthouse of Pontefract, L.
Bragg, L. McCarthy, L.
Brooke of Alverthorpe, L. Macdonald of Tradeston, L.
Brookman, L. McIntosh of Haringey, L.
Brooks of Tremorfa, L. McIntosh of Hudnall, B.
Burlison, L. MacKenzie of Culkein, L.
Campbell-Savours, L. Marsh, L.
Carter, L. Mason of Barnsley, L.
Christopher, L. Massey of Darwen, B.
Clarke of Hampstead, L. Merlyn-Rees, L.
Corbett of Castle Vale, L. Mitchell, L.
Crawley, B. Morgan, L.
David, B. Morris of Aberavon, L.
Davies of Coity, L. Morris of Manchester, L.
Davies of Oldham, L. [Teller] Nicol, B.
Dean of Thornton-le-Fylde, B. Patel of Blackburn, L.
Desai, L. Pitkeathley, B.
Dixon, L. Richard, L.
Dubs, L. Rogan, L.
Eatwell, L. Rooker, L.
Elder, L. Scotland of Asthal, B.
Evans of Temple Guiting, L. Sheldon, L.
Falconer of Thoroton, L. (Lord Chancellor) Simon, V.
Farrington of Ribbleton, B. Smith of Gilmorehill, B.
Filkin, L. Stallard, L.
Fyfe of Fairfield, L. Strabolgi, L.
Gibson of Market Rasen, B. Symons of Vernham Dean, B.
Golding, B. Temple-Morris, L.
Goldsmith, L. Tomlinson, L.
Gordon of Strathblane, L. Triesman, L.
Gould of Potternewton, B. Turner of Camden, B.
Graham of Edmonton, L. Varley, L.
Grocott, L. [Teller] Whitty, L.
Harrison, L. Wilkins, B.
Hayman, B. Williams of Elvel, L.
Hilton of Eggardon, B. Woolmer of Leeds, L.
Hogg of Cumbernauld, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4 p.m.

Lord Goodhart moved Amendment No. 44: Page 14, line 2, leave out "5" and insert "10 working

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 45: Page 14, line 13, leave out "applicant" and insert "parties to the appeal

The noble Lord said: My Lords, I hope to be quite brief. It is undesirable that, where reconsideration is ordered because an error of law may have been made, the case should be referred back to the same member of the tribunal who made the original decision to decide whether in fact he or she got it wrong the first time round. There may be exceptional cases where it is legitimate, but they are few and far between. It is also usually desirable that, where an error of law may have been made, the case should be reconsidered by a panel of three rather than by a panel of one.

It is true that under Schedule 5 to the 2002 Act the president of the asylum and immigration tribunal will have power to direct, where in his view it may be appropriate, that the case should be reconsidered by a different member of the tribunal from the original one or should be reconsidered by a panel of a different size. But it seems appropriate that the judge of the High Court or whichever is the appropriate court in Scotland or Northern Ireland who has actually heard the application and is therefore aware of the issues involved should have power not only to direct a reconsideration on the grounds of an error of law, but also to decide on the form of tribunal which is to hear that reconsideration.

I do not suggest that the judge should be bound to exercise the power, but in cases of this kind it would be appropriate for the judge, if he or she has clearly decided that it cannot go back to the person who made the original decision, to decide there and then who is to hear the reconsideration. I beg to move.

Lord Mackay of Clashfern

My Lords, I thought that Amendment No. 45 had been called, but the statement by the noble Lord in support of it appears to be more appropriate to Amendment No. 46.

Lord Goodhart

My Lords, I apologise. The noble and learned Lord is quite right. The amendments are grouped together, but Amendment No. 46 is the substantial amendment. Amendment No. 45 suggests a minor point to make it clear that this provision should apply to both parties of the tribunal, not only to an appellant.

Lord Ackner

My Lords, will the noble Lord assist me on one point? Since the emphasis of the whole of this part of the Bill is on expedition, and since we are dealing with a point of law and a tribunal which is a qualified judge, why should not the judge himself make the decision that there was an error of law and the consequences are as would be appropriate? Why would it need to go back in every case?

Lord Goodhart

My Lords, I am pleased to be able to help the noble and learned Lord, Lord Ackner. I am sorry if what I said was confusing, but the purpose of this amendment is exactly that: it is to make sure that the judge who hears the application for an order for reconsideration should be able himself or herself to say, on the spot, "We need not bother the president of the asylum and immigration tribunal. I myself am convinced that this is a case which should not go back to the member of the tribunal who took the original decision. The issue is so important that it requires a panel of three". So I am grateful to the noble and learned Lord, with whom I think I am in entire agreement.

Lord Renton

My Lords, pages 1 and 2 of the Marshalled List state: An order … may direct that the decision of the Tribunal may be reconsidered by—

  1. (a) a member who made the decision;
  2. (b) another member; or
  3. (c) a panel of 3 members".
Why should it be necessary to insert a provision for three members if one member is enough? I should be grateful if the noble Lord could help me on this point.

Lord Goodhart

My Lords, I am grateful to the noble Lord. There is an existing power for the president to declare that a case is sufficiently important to require it to be heard by more than one member of the panel. Therefore, if the judge is to be given a choice, he or she should be given the same choice as the president would have, which would include the power to direct that the case should be heard by a panel of three members.

Three members seems the right number here. Two members would be unsatisfactory, as even numbers tend to be when taking judicial decisions, and rising to five members would be to over-egg the pudding.

Lord Kingsland

My Lords, Members on these Benches support the amendments tabled by the noble Lord, Lord Goodhart, save for one qualification. The noble Lord will see that Amendment No. 57A would require three members to be the normal number to sit on the tribunal, unless the President from time to time directs". Were that amendment ultimately to find itself included on the face of the Bill, I suggest that a slight modification would need to be made in Amendment No. 46 to new subsection (5A)(a) and (c). Subsection (5A) would have to read, "member or members who made the decision", while (c) ought to read, "or another panel of 3 members". However, the changes would be necessary only if the contents of Amendment No. 57A were to find their way into the Bill. I apologise to the noble Lord for not drawing his attention to this point earlier.

Lord Mackay of Clashfern

I had proposed to say a few words about Amendment No. 45, because I am not sure of the Government's attitude towards this amendment. I assume that, for the sake of brevity, they would want to have the case decided without the necessity of inviting the respondent to make representations. I think that Amendment No. 45 implies a right, or at least a power, to require representations from the other parties to the appeal.

The point made by the noble and learned Lord, Lord Ackner, seemed to be that, if it is apparent that there has been an error of law, the simplest way to correct it is perhaps to make a new decision immediately which has the opposite effect. The problem about that is, unless and until the basic opening of the clause is changed, the only power in the court is to remit the case to the tribunal. If the point made by my noble and learned friend were to be given effect, some further amendment would therefore be required. I do not think that Amendment No. 46, moved by the noble Lord, Lord Goodhart, would have that effect.

So far as Amendment No. 46 is concerned, for my part I would be willing to take it that the judge hearing the case in the High Court would have these powers in any event. If there is any doubt about that, however, I see no reason why these amendments should not be made.

Lord Donaldson of Lymington

My Lords, if on review the judge decides that there has been an error of law, I do not think that it follows that the lower tribunal, with one or three members, would necessarily reach a particular conclusion. For instance, if the decision is that an irrelevant matter has been taken into account, it still leaves open the question of what happens when the relevant matter is taken into account. On the face of it, that would not be a matter for the High Court judge.

While judges are perfectly capable, when looking at a decision which overturns their own decision, of saying, "That is what that court says"—they probably got it wrong, but that is beside the point—"They have the last word, so of course I will follow it". We know, or at any rate those who are involved in the law know, that that is so, but the lay public do not. If there is a situation in which a decision is sent back to the original member, who then says, "Having taken account of the guidance I have received from the High Court, I still think that the answer is what I said it was", it is probably a perfectly possible answer but it is not one which would carry conviction with the public.

It would therefore be important that the judge of the High Court should consider very carefully before sending it back to the same member as had it in the first place—unless he is quite satisfied that the answer will be a different one.

The Countess of Mar

My Lords, there are occasions when it is appropriate to send it back to the person who made the decision in the first place. Sometimes that person will not have taken all matters into consideration and will need to be reminded that this should have been done and, if he had taken all matters into consideration, what then would have been his decision.

On the other hand, in most of the cases that have been through my hands, when it has been sent back to a lower level for a rehearing, it has been to a fresh hearing as opposed to a filling-in of what has already been heard. There is therefore room for both cases.

4.15 p.m.

Lord Filkin

My Lords, in responding to an interesting debate, it may be helpful if I start by emphasising what the Government are seeking to do under Clause 14 in this respect.

Essentially, and for reasons which will be well known to the House, we think that there is a need for and merit in a single process in the new Asylum and Immigration Tribunal to deal with issues, rather than a second two-stage process. However, the House and others have made representations to us that the ouster of judicial review went too far and did not allow an adequate supervision by the higher courts of points of law or failures by the tribunal.

Therefore, in the amended Clause 14 we are seeking to ensure that the single-tier tribunal, the AIT, has the capacity, skills and competence to deal with these issues, but allow an opportunity, when there appears to have been a case where there is an error in law, for that to be considered by a higher court, normally the High Court and, if the judge hearing that case believes that an error in law has been made, to send that back for reconsideration.

We are not trying to reconstruct a two-tier process built on the AIT—for very good reasons, because that would in large part take us back to where we are at present.

That is why we are not sympathetic to Amendment No. 45. The noble Lord, Lord Goodhart, suggests a requirement for the High Court or Court of Session to determine review applications by reference to the written submissions of all parties to the appeal, and not only the written submissions of the applicant. That effectively puts the High Court—if the High Court is hearing it—in the position of deciding on the substance of it. That is not what we want to do, and for good reason.

It is important to recognise that new Section 103A has been drafted to reflect the fact that the review procedure will be ex parte: in other words, if a person who has agreed with the decision of the AIT has an opportunity to direct to a higher court a challenge that there has been an error of law by the AIT, and if the judge in that case is persuaded by that to direct a reconsideration.

The current permission stage to the AIT and the statutory review procedure under Section 101 of the 2002 Act, for similar reasons, are both ex parte and we think that it is necessary and right to continue with this.

Requiring the High Court to determine review applications by reference to the written submissions of all parties to the appeal would effectively put it in the position of determining the appeal, would add delay to the process, and is unnecessary.

It is also undesirable for other reasons. One of the problems experienced has been that the High Court has been swamped by appeal applications of this type. That has put an inappropriate burden on the High Court. Therefore, the procedure as crafted by new Section 103A allows for the proper exercise of High Court supervision on points of law, but does not take away from the specialist tribunal the reconsideration of those matters. In other words, it has been carefully crafted—we believe for good reason.

If the High Court or a senior member of the tribunal considers that there may have been an error of law and orders a case to be reconsidered by the tribunal, at that point all parties to the appeal will have the opportunity to make written and, if appropriate, oral representations. We therefore believe that the provision is well constructed. The substantial hearing, if there has been a finding on a point of law, is back into the tribunal following the determination by the High Court judge.

Amendments Nos. 46 and 57 will enable the High Court or the Court of Session to direct how the tribunal should be composed when it reconsiders an appeal. As it stands, the president of the AIT will direct the composition of the tribunal under paragraphs 7 and 8 of Schedule 1 of the Bill. We believe that is where that discretion should lie.

We agree that the reconsideration process will need to vary. Some appeals will be best reconsidered by a full hearing but, for others, this may not be necessary. Some appeals will require a panel of judges to hear them, because it is seen by the president as potentially a pivotal case that will set a precedent relevant to other cases. In such circumstances one would expect that there would be three judges in the AIT hearing such a case. In other cases it will not be so, and therefore we believe that the president should take into account any recommendations made by the High Court or Court of Session but should have the discretion within that to make a determination on how best the appeal should be reconsidered in the AIT, depending on the particular circumstances. Ultimately, the president is best placed to take these decisions on the deployment of judiciary within the tribunal.

This has been a helpful debate. I do not think that I have replied to the point made by the noble and learned Lord, Lord Ackner, as to why the High Court should not be given the power to reverse. I may have done so in passing, because I have signalled that it is a different function for the High Court. It is not to hear the substance but to hear whether it considers that an error in law has been made. As the noble and learned Lord, Lord Donaldson, helpfully signalled, that does not imply that in every single case—even where an error of law may have occurred—the reconsideration decision will automatically be reversed. It will depend on the circumstances of the case.

I hope that my comments have been helpful to noble Lords who have spoken to the amendment.

Lord Goodhart

My Lords, I am not wholly unsympathetic to the Government's view. I do not think that it would be appropriate for the judge to turn what is, in effect, an application for leave to appeal into a substantive hearing. I understand that and the amendment was not intended to achieve it.

Although the Government have taken some care to avoid saying so, they are trying to create an internal appeal system within the tribunal itself in which, if the case arises in England, the judge of the High Court effectively gives leave to appeal from one part of the tribunal to another panel or individual within the tribunal. It is a fairly ingenious way of handling the issue. From the Government's point of view it has the advantage that, albeit the leave to appeal—if one can call it that—is given as part of the jurisdiction of the High Court, it is not in itself subject to judicial review.

Amendment No. 46 would save time because a judge could say, "Having looked at this matter on an ex parte basis, it seems to me that there is plainly something that needs to be looked at seriously". That would avoid the delay involved in having to refer the papers to the president of the tribunal and he or she having to read up the papers and come to a decision as to what is the appropriate form of the tribunal.

However, I am also aware that, unlike the previous group of amendments, a refusal to accept these amendments will not lead to any injustice in the procedure. In those circumstances, I do not wish to press them further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Filkin moved Amendment No. 46A: Page 15, line 42, leave out from beginning to "applies" in line 43 and insert—